The Legitimacy Crisis and the Future of Courts

There is an overall legitimacy crisis in courts. The sources of this crisis have, to a large extent, been misconstrued. While there has been significant writing depicting the diminished quality, effectiveness, and fairness of courts, these phenomena have, for the most part, been viewed as distinct problems that warrant discrete solutions. This article shows that these problems are all manifestations of an overall legitimacy crisis that stems from the blurring of the originally stark distinctions between courts and alternatives. Traditionally, formal and informal dispute resolution processes had their own sources of legitimacy, each grounded in their respective distinctive (often opposing) characteristics. In the case of informal dispute resolution, where processes were flexible and individually tailored, legitimacy stemmed from their consensual and voluntary nature. By contrast, in formal processes, legitimacy was derived from the certainty and predictability that came with detailed fixed procedures, which leave little room for discretion. To a large extent, this description no longer reflects the reality of courts. As courts have become more flexible and ADR procedures have been institutionalized within courts, traditional sources of legitimacy have lost their vigor and new sources of legitimacy need to be conceptualized for courts, as for informal processes. This article develops a fresh framework for legitimacy in an age of blurred distinctions by applying the principles developed in the emerging field of “dispute systems design” (“DSD”). Drawing on several case studies, this Article analyzes the ways in which the principles of DSD can be employed to design more effective and fair dispute systems, which in turn, can generate broad legitimacy in courts and in alternative forums. * Orna Rabinovich-Einy is a Senior Lecturer at the University of Haifa Faculty of Law and a Fellow at the National Center for Technology and Dispute Resolution.